A case study of modern legislation against cultural identity

In-depth

Every year an estimated two million girls around the world are at risk of undergoing the removal of all or part of their genitalia, a procedure referred to as female genital mutilation (FGM), female circumcision or female genital cutting. Kenya is one of 28 countries in Africa in which FGM is widely practised.

"Female genital mutilation and cutting is a violation of the basic rights of women and girls," Carol Bellamy, executive director of the UN's Children's Agency (UNICEF), said on 7 February 2005, the International Day of Zero Tolerance of FGM.

"It is a dangerous and irreversible procedure that negatively impacts the general health, child-bearing capabilities and educational opportunities of girls and women," she stressed.

The Kenyan government estimates that 32 percent of all women between the ages of 15 and 49 in more than half the country's districts have undergone FGM.

Although the survey did not include northeastern Kenya, it is estimated that at least 98 percent of girls undergo infibulation (removal of part or all of the external genitalia and/or stitching of the vaginal opening leaving a small outlet for urine and menstrual flow), while the two largest western groups, the Luo and the Luhya, do not practise FGM.

Kenya's refugee population is affected as well. The country hosts over 240,000 refugees, mainly from Sudan and Somalia, but also from Ethiopia, Eritrea, and other neighbouring countries. Dadaab refugee camp houses thousands of Somalis, who, according to the UN's Refugee Agency (UNHCR), practise infibulation on girls as young as six. UNHCR has a gender-based and sexual violence programme that targets all communities practising FGM in refugee communities across the country.

Complications arising from the practice are common in Kenya, as most procedures are performed without an anaesthetic, using rudimentary tools in unsanitary conditions.

A 1993 study of women in four Kenyan districts by the local women's development non-government organisations (NGOs), Maendeleo Ya Wanawake Organisation (MYWO) and Programme for Appropriate Technology in Health (PATH), showed that up to 48 percent of women who underwent FGM suffered short-term complications, including haemorrhage, infection and urine retention. Up to 30 percent suffered longer-term complications, such as difficulties during childbirth, vesicle vaginal fistula, low libido and depression.

Another chilling threat posed by FGM is the risk of contracting HIV/AIDS. Traditionally, a single instrument is used to cut several girls in quick succession, increasing the risk of contracting the virus. However, MYWO reports that just 14 percent of FGC practitioners continue to use a single blade for multiple procedures, with most of them using one disposable razor blade per girl.

The fight against FGM in Kenya is hardly new; it dates back to pre-independence times, when the colonial government passed legislation to reduce the severity of the cut, stipulate the age at which girls underwent FGM, and ensure that parental consent was obtained.

However, in 1958, due to opposition from communities practising FGM, the colonial government was forced to revoke the legislation.

More recently, the Children's Act of 2001 explicitly protects the girl-child from early marriage or forced FGM. The act prohibits all forms of FGM, and any person found circumcising a girl under the age of 18 is liable to be charged and imprisoned for one year or fined 50,000 Kenya shillings (US $710), or both.

FGM practitioners and parents forcing the procedure on their daughters can also be prosecuted under child abuse laws, or for grievous bodily harm or unlawful dismemberment of an organ of the body.

The weakness of the criminal sanctions is that they do not protect a girl from FGM. Regardless of any punishment the law metes out to the practitioner or parent, the procedure is irreversible.

However, several young girls have recently successfully sued their parents under civil law to prevent them from forcing FGM upon them.

The UN's Beijing Declaration (1995), to which Kenya is a signatory, underscores the obligations of governments to combat violence against women - including FGM - as a priority.

Kenya has also signed the African Union's Maputo protocol, which requires parties to use legislative measures to prohibit and condemn all forms of FGM.

Despite the legislation, FGM remains widespread in Kenya and the law is rarely enforced against practitioners, or parents forcing their daughters to undergo the procedure.

Referring to the deep-rooted nature of FGM in the communities practising it, MYWO's Leah Muuyo observed in the documentary, 'Secret and Sacred', "People think of traditions as themselves, they see themselves in their traditions; they see they are being themselves because they have been able to fulfil some of the initiations."

According to NGOs actively campaigning to end the practice in Kenya, a slow but steady decline is being noted due to greater public awareness of the dangers of FGM.

A study conducted in 1991 revealed that 78 percent of adolescents from circumcising communities in Kenya had undergone the procedure, compared with a 100 percent prevalence rate among women over 50.

Education and westernisation in urban centers have meant that the practice remains much more prevalent in rural areas than in urban areas, where people’s cultural priorities are no longer match those of their rural counterparts.

However, this is not always the case, as many urban dwellers send their daughters to their rural homes for the procedure when the time is right.

“My ten year old girl is with her grandmother in Kisii [western Kenya] to get circumcised. When you live in the city, it is even more important to be circumcised because there is so much immorality going on,” Elijah, a waiter in Nairobi, told IRIN.

Efforts to Stop FGM in Kenya

With the support of the Kenya government and its international development partners, several NGOs have made strides in the struggle to eradicate FGM.

The issue is being addressed in three ways:

- Public awareness and education campaigns - community-based education programmes have been established in most areas practising FGM, and information about the problems associated with the practice has been incorporated into the syllabuses of many schools.

- Policy and legislation - although Kenya has passed specific legislation targeting FGM, it is rarely applied, and experts consider policy and legislation less than satisfactory as a means of eradicating the practice.

While these efforts have yielded some results, many communities still practising FGM remain adamant that they will perpetuate their traditions - including cutting their young girls.

Legislation against FGM, rather than reducing the prevalence of the practice, has sometimes merely driven it underground, with many mothers opting to have the procedure performed on their daughters as early as four years old to avoid government interference or the child's refusal to undergo the practice once she is older.

Another problem caused by criminalisation of the practice is that fewer women are willing to seek proper medical care when they suffer complications.

"All we can do is advise them about the dangers of practising FGM, but we cannot control whether or not they stop it," Robina Biteyi, programme coordinator for the African Medical Relief Foundation (AMREF), told IRIN. "Ultimately, that is a decision the community has to make for itself."

Circumcision Through Words - Alternative Rites

MYWO and PATH have adopted the model of alternative rites of passage in several districts, where they work with communities to maintain the rituals that lead adolescent girls to womanhood, using ceremonies that exclude FGM.

Alternative initiation rites enable communities to maintain culturally relevant aspects of their rites, but remove the harmful cutting of girls; they are shown that the campaign is not against their customs as a whole, merely against FGM.

The first alternative rites ceremony took place in 1996 in Gatunga (Meru district), a small village a stone's throw away from Africa's second highest peak, Mount Kenya. It was dubbed, 'ntanira na mugambo', literally "circumcision through words".

Fifty families in the village sent their daughters for a week's seclusion, during which the girls were educated about reproductive health issues, HIV/AIDS, communication, self-esteem and dealing with peer pressure.

The week was crowned with celebrations and festivities, community singing, dancing and giving gifts to the girls, who had returned as women without having undergone the damage and pain of FGM.

Since then an annual alternative rites ceremony has taken place in several districts and the number of families choosing this option over FGM continues to grow.

Alternative rites offer an acceptable compromise for many societies loath to give up customs that have been part of their culture for centuries. The fact that local participation is high is an added advantage, as communities are more likely to listen to one of their own than a foreigner, who could be seen as ignorant of their ways, or worse, judgmental of their cultural traditions.